United States Gypsum Co.

In the Matter Of UNITED STATES GYPSUM COMPANY, EMPLOYER and UNITED PAPER WORKERS OF AMERICA, CIO, PETITIONER Case No. 6-RC-193 AMENDED DECISION ORDER AND SECOND DIRECTION OF ELECTION July 13, 1949 On January 26, 1949, the Board issued its Decision and Direction of Election in the above-entitled case.' Thereafter , on February 10, 1949, the Petitioner filed a Motion for Reconsideration of the Board's Decision and Direction of Election with respect to the exclusion from the appropriate unit, as supervisors , of the head beatermen, head loaders, bottomer operators, tuber operators, and machine tenders employed at the Employer's Oakmont, Pennsylvania , plant. On Feb- ruary 11, 1949 , International. Brotherhood of Paper Makers, AFL, although not a party to the proceeding , also urged reconsideration of the Board's Decision, and moved at the same time to intervene herein. ` On February 21, 1949, the Employer filed a Statement in Opposition to Petitioner's Motion for Reconsideration ; and Motion of Employer to Strike. On February 21, 1949, the Board issued its Order granting the Petitioner 's Motion,' reopening the record, and remanding the case to the Regional Director for further hearing on the question of the supervisory status of the individuals in the dis- puted categories. Pursuant to the Board's Order, a hearing was held before Erwin Lerten, hearing officer. The hearing officer's rulings made at the 181 N. L. R. B. 310. s The Employer 's statement and Motion was received by the Board on the same day that it issued its Order. The Statement contained no new matter not already considered by the Board . The Motion was directed at allegations made in the Petitioner 's Memorandum in support of its Motion for Reconsideration. As these particular allegations had no relevance to the issues in this proceeding , the Board has not considered them, and the Employer has not been prejudiced thereby . The Employer' s Motion is therefore denied. 85 N. L. R. B,, No. 30. 162 UNITED STATES GYPSUM COMPANY 163 -hearing are free from prejudicial error and are hereby affirmed.' The requests of the Petitioner and of International Brotherhood of Paper Makers, AFL, for oral argument are hereby denied, as the entire record of the original 4 and of the reopened hearing, and the briefs 6' in our opinion, adequately present the issues and the positions of the parties. . Upon reconsideration of this case, and upon the entire record herein,, the Board makes the following supplemental findings of fact: The appropriate unit: The Petitioner seeks a unit composed of all the production and maintenance employees at the Employer's Oakmont, Pennsylvania,. plant, excluding office clerical employees, professional employees,. guards, and supervisors as defined in the Act. The parties are in general agreement as to the composition of the unit.' The Petitioner,. however, would include head beatermen, head loaders, bottomer oper- ators, tuber operators, and machine tenders, whereas the Employer -would exclude them on the ground that they are supervisors within the :meaning of the amended Act. These categories were excluded ,from the unit in our original Decision on the basis of the uncontra- dieted testimony of the Employer's works manager. The entire record,. however, as further developed at the reopened hearing, shows the situation as to the disputed categories to be as follows : Head beaterm.en: There are three head beatermen in the Employer's plant, one on each shift. Each head beaterman has two helpers. The works manager of the plant here involved, presented as a witness by the Employer at the original hearing herein, testified that 50 percent of the time of a head beaterman is spent in supervision, and that the remainder of his time is devoted to manual labor along with his helpers; that a head beaterma.n is consulted about promotions; and that he has the responsibility to recommend discipline or discharge of his helpers. On the other hand, a witness for the Petitioner at the re- opened hearing, who had worked as a head beaterman' in this plant .for 2 years, testified that he spent "in eight hours about ten minutes"' telling other people in the beater room what to do. This witness further testified that, although he was asked "once in awhile" for his opinion regarding new employees in the beater room, he had never- been instructed, and did not consider it one of his duties, to recommend 3 In its Order of February 21, 1949 , the Board did not pass upon the request to intervene by International Brotherhood of Paper Makers , AFL. At the reopened hearing, a motion' to intervene by this organization was denied by the hearing officer because no showing of interest had been made by it. The hearing officer's ruling is hereby affirmed. 4 Our original Decision remains in force except to the extent herein indicated. 5 Counsel for the Petitioner filed a brief on behalf of the Petitioner as well as , a brief amicus curiae on behalf of International Brotherhood of Paper Makers, AFL. 857829-50-vol. 85-12 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees for discipline or discharge; that promotions and demo- tions had been made in the beater _ room without consultation with the head beaterman; that he had never complained to the tour boss with respect to any of the men working under him; and that he did not attend the foremen's meetings. Head loaders: There are two head loaders in the bag plant and one in the paper mill. The paper mill head loader and the head loader on the :day shift in the bag plant each have one helper. The head loader on the afternoon shift in the bag plant has no helper and alter- nates weekly as helper on the day shift. The plant manager testified that the head loaders spend from 60 to 70 percent of their time in physical work along with their helpers; the remainder of their time being spent in supervision. In contradiction to this testimony, the Petitioner's witness, a head loader for 3 years, testified that, even with an inexperienced man as his helper, he would spend no more than half an hour of an 8-hour shift in directing the helper. He further testified that he had been asked to volunteer his opinion re- garding new employees, but that he had never been told that it was one of his duties to make recommendations; that he did not attend the foremen's meetings; and that the helpers did not present grievances to him for adjustment. Bottomer operators: There are six bottomer operators in the Em- ployer's bag plant, three on each of two shifts. Each operator has six helpers on his machine. The plant manager testified that the work of the bottomer operators requires judgment and discretion, and that they have authority to reprimand employees and to make recommenda- tions for promotion, transfer, and discharge. A witness for the Peti- tioner at the reopened hearing, who had been a bottomer operator for 6 years, testified that he had not been told that one of his duties was to make recommendations with respect to employees working on his machine, that none of the employees working on his machine took up grievances with him; that he attended safety meetings but did not attend the foremen's meetings; that no more than 5 percent of his time was spent in directing other employees on the machine; and that the only directions given by him were of a routine nature. He has been asked his opinion concerning new people working on the machine with him, but he testified that other workers assisting him on the machine were also asked their opinions. Tuber operators: There are four tuber operators in the bag plant, two on each of two shifts. Each tuber operator has three helpers. The plant manager testified that each tuber operator devotes 60 percent of his time to supervising these assistants, the remainder of his time being spent in physical labor. The Petitioner's witness, a head loader UNITED STATES GYPSUM COMPANY 165 who had previously worked on a tuber machine in this plant, testified that he had never been disciplined by the tuber operator while working on the machine, and that he remembered. only one instance in which a tuber operator had reprimanded, but had not discharged, another employee for slow work. He further testified that, with an inexperi- enced man on the crew, a tuber operator would spend up to 1 hour of an 8-hour day in directing the crew, but that, with an experienced crew, the tuber operator would spend very little time in directing the men. Machine tenders : There are three machine tenders in the Em- ployer's paper mill, one on each shift. Each machine tender has three helpers. The Petitioner's witness, a machine tender for the Employer for 4 years, testified-in contradiction of the works man- ager's testimony that 70 percent of a machine tender's time is spent in supervision-that with "a normal crew of relatively experienced men" he would not spend more than half an hour a day in telling them what to do. He testified further that grievances were not pre- sented to him; that he did not attend the foremen's meetings; that he did not consider it one of his duties to make recommendations or reports with respect to men working on the crew with him ; and that, in fact, he never reported any man for poor work. He further testified that the opinions of the other workers on the machine, as well as his own opinions, were sought in the event that promotions were being considered. It thus appears, from the entire record, that the individuals in the disputed categories do not possess supervisory authority within the meaning of the amended Act. They have never been told that they have, and they do not in fact exercise, authority effectively to recom- mend the discipline or discharge of employees working with them.6 Much, if not most, of their work is identical with that done by their helpers. The Petitioner claims that at least 95 percent of their time is spent in physical labor, and the Employer admits that from 30 per- cent to as much as 70 percent of their time is thus spent. To the extent that they direct their helpers, such direction is in the nature of the supervision generally exercised by an experienced employee over those who are less skilled. The Employer's organizational chart does not list these disputed categories as part of its supervisory hierarchy. These categories were included in the unit in the several collective bargaining contracts 9 Although the plant manager testified generally that these individuals possess authority to make such effective recommendations , he gave no instances of the exercise of this authority. 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD consummated by the Petitioner's Local Union No. 70 and the Em- ployer. All those in the disputed categories are hourly paid, whereas. all the admitted supervisors are salaried. Furthermore, on July 18,. 1948, following the expiration of its most recent contract with Peti- tioner's Local Union No. 70, the Employer posted its "Plant Practices. for Hourly Employees," in which it set forth wage scales and regula- tions which covered all the disputed categories, but did not cover- supervisors. Moreover, the record shows that there are approximately 107 em- ployees doing production and maintenance work. By agreement of the parties, 14 individuals were excluded from the unit as supervisors.' To find the 19 individuals in the disputed categories also to be super- visors would be to say that there are at the Employer's plant 29 super- visors to 88 rank and file employees, or a ratio of one supervisor to, every 3 employees. This would constitute a set-up at sharp variance from the usual practice in the paper industry." In view of the foregoing, and upon the entire record herein, we- find that all the production and maintenance employees at the Em- ployer's Oakmont, Pennsylvania, plant, including inspectors, head-, beiitermen, head loaders, bottomer operators, tuber operators, and machine tenders, but excluding testers, office clerical employees, pro- fessional employees, guards, and supervisors, constitute a unit appro- priate for the purposes of collective bargaining, within the meaning- of Section 9 (b) of the Act." We shall set aside the original Direction of Election issued herein,.. and direct that an election be held among the employees in the unit found appropriate above who were employed during the pay-roll'- period immediately preceding the date of this Second Direction. ORDER IT IS HEREBY ORDERED that the Direction of Election issued herein on, January 26, 1949, be, and it hereby is, vacated and set aside. SECOND DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the -purposes of collective bargaining with the Employer, an election by T The record shows that , although not all of these 14 individuals supervise the production- and maintenance unit, at least 10 of them do. .8 The Petitioner introduced evidence that the normal ratio of supervisors to employees- in the paper industry is approximately one supervisor to every 12 or 15 employees. I For the reasons stated in our original Decision , the part-time watchmen and inspectors: are being included in, and the testers excluded from, the production and maintenance unit- herein found appropriate. UNITED STATES GYPSUM COMPANY 167 secret ballot shall be conducted as early as possible, but not later than 30 days from the date of this Direction, under the direction and super- vision of the Regional Director for the Sixth Region, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations-Series 5, as amended, among the employees in the unit found appropriate above, who were employed during the pay-roll period immediately preceding the date of this Second Direction of Election, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, but excluding those employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, and also excluding employees on strike who are not entitled to reinstatement, to determine whether or not they desire to be repre- sented, for purposes of collective bargaining, by United Paper Work- ers of America, CIO.